10 November 1999: Add press releases from the Council of the European Union on electronic interception and cybercrime.

10 November 1999. Thanks to Telepolis and CSH.
Source: http://www.heise.de/tp/deutsch/special/enfo/6515/1.html

See related reports: http://cryptome.org/g8-law.htm; http://cryptome.org/g8-hunt.htm

Translation by Cryptome with Systran.

Telepolis, November 8, 1999

Enfopol plans integrated into European legal aid agreement

By Christiane Schulzki Haddouti  

General long distance surveillance?

For months nothing was heard of Enfopol plans. The European federation lobby for EuroISPA providers saw itself already on the winning side: It had not accepted plans for transnational surveillance and assumed they would not be pursued. However a June 28 draft of a comprehensive European legal aid convention reveals there remains surveillance capability by satellite communication despite the failure of the Iridium system. There is still no decree in the country in which rights of the Iridium ground stations are in dispute -- which for Europe means Italy.

Within Article 11b of the legal aid convention is stipulated "remote access" of national monitoring measures becomes "regarding telecommunications connections on a state's own territory under engagement of national service tenderers by means of remote control in another member state which has the appropriate ground station". But none of its own rogatory letters are necessary for the member state with the ground station. A condition is that all telecommunication service offerers make "possible the execution of national monitoring arrangements". Exactly as the Enfopol plans had required. Now they are integrated into the European Union legal aid convention.

Italy wanted to allow the remote access only under the condition that the national monitoring measures of other member states do not violate the principles of Italian law. However, after intensive consultation most other member states rejected this. Whereupon Italy succumbed to pressure after June 10. It went on the counteroffensive by submitting a new suggestion: It proposed that telecommunications operators should be obligated to other European service tenderers for "makin directly accessible the monitoring mechanisms of telecommunications traffic". Thus would be the general long distance surveillance permitted -- independent of the underlying technology.

The Italian suggestion was defused however however in a further round of negotiations, since the member states feared, a guaranteed "remote access" could "subsequent problems with the release of surveillance data. The "obligation" was replaced by therefore it by a "authorization" in the document of COPEN 6. Under the Finnish presidency the EU wants to consult over it still further.

Transnational co-operation

In Article 12 of the legal aid convention it is stipulated that another member state can be obligated to make a technical monitoring of telecommunications traffic "in real time" or deliver monitoring recordings already existing. If the log files of a Internet Providers were stored, they can be delivered according to Article 12. If a country does not need the technical support of this for monitoring in another country, then that is also to be possible under certain conditions.

This request can be rejected however, if the measures "contradict lawful order" and "if the monitoring had been inadmissible by national law of the requester. If evidencxe was obtained in such a contradiction itmay not be used in criminal procedures. Sweden does not yet agreewith this regulation -- for there this principle contradicts the free judicial proof appreciation in accordance with Swedish law of criminal procedure. France submitted a new suggestion, which proposes together with Sweden that the monitoring measure may not be accomplished if the country of residence is silent still on the fourth day of its request. Positions are being clarified now.

At the Expense of the Provider

In Article 14 the question of the costs of interception and surveillance are finally explained. Thus the requesting national member bears the cost of supervision of the operator, but not however the capital outlays, which the operator must exend, in order to make the monitoring technically possible. However this question is not yet quiet clarified. According to "opinion of the representative of the commission" this question is to be addressed in "a suitable committee".

Special Role for Great Britain

It is unclear whether and agreement with Great Britain can be obtained. There the Secretary of State in the Home Office issues the monitoring order -- in the interest of national security or the prevention or prosecution of crime. It is activated if the British secret services or police and customs authorities bring in an appropriate request. A clear separation between hearing measures from prosecution authorities on the one hand and secret services on the other hand does not therefore work well in Great Britain. Besides the secret services have supported the police authorities with the investigation of serious criminal offences since 1996. However the hearing material may be used not as evidence in criminal procedures, but in only for investigative purposes.

Great Britain wanted to exclude therefore the hearing arrangements which were issued upon the request of the secret services completely from the agreement for the measures requested by prosecution authorities initiated in the interest of national security. That was not however acceptable for the other states. After intensive bilateral consultation in the committee of the Permanent Representatives, on the European Union Council conference on May 27 and 28 as well as during a special meeting articles 36-Ausschusses on June 10. In June however came some movement into the hard British position, reports the Federal Department of Justice. In June officials agreed on a compromise which permits an inclusion of the hearing measures which were made solely due to criminal determinations.

Schedule

In the Enfopol plans it concerned in principle always transnational surveillance of communication -- no matter by which technical means it is conveyed. While the work group tried itself "police co-operation (Enfopol)" it became necessary for a uniform hearing terminology to be reasonable, the lawyers in the working group "Justpen" prepared the legal conditions. The legal aid agreement among other things prepared by them shows clearly that nothing changed in the objective. Nevertheless safeguard mechanisms were inserted in order to prevent national authority violations. Surveillance can be done only on the basis of national authority in each case - excluded however is that general long distance surveillance by ground stations of satellite communication systems such as Iridium under certains current conditions.

When the convention is to be adopted is still uncertain. Due to a proposed amendment in 1998 by the Netherlands the Federal Government had inserted one today to not waive parliamentary reservation to the monitoring regulations. The political meaning was classified however by the Federal Department of Justice as "urgent". Up to now these were not yet addressed in the Bundestag. Also a statement of the Upper House of Parliament is still pending. Before the acceptance of the convention by the Council it must be considered by the European Parliament.

In the Council however discussions continue on legal regulations for data security. Germany and Belgium insist on an agreement of legal regulations for data security. But they encounter reistance from the other member states. They hold the view that the regulations at the national level are sufficient also for the transmission of personal data in the context of the legal aid agreement.

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Last modified: 08.11.1999

Source: http://ue.eu.int/Newsroom/LoadDoc.cfm?MAX=1&DOC=!!!&BID=86&DID=59352&GRP=2059&LANG=1

PRESS RELEASE

Subject :

CONTENTS

PARTICIPANTS *

ITEMS DEBATED

[Snip]

CONVENTION ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS - INTERCEPTION OF TELECOMMUNICATIONS *

[Snip]

PARTICIPANTS

The Governments of the Member States and the European Commission were represented as follows:

[Snip] 

CONVENTION ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS - INTERCEPTION OF TELECOMMUNICATIONS

The Council had a further exchange of views on the main outstanding question as regards this draft Convention, namely the interception of telecommunications, on which work was launched more than two years ago.

The overall purpose of this draft Convention is to supplement and facilitate the application of the 1959 Council of Europe Convention on mutual assistance in criminal matters, in order to provide for a more efficient and faster judicial cooperation in criminal matters.

The Council examined in particular the precise scope of the obligation for a Member State intercepting a target present on the territory of another Member State, to inform the latter. It is stressed that the draft Convention is intended to cover only interceptions undertaken in the framework of criminal proceedings. The difficulties in defining the above-mentioned obligation are linked to the national legislation of one Member State in which no clear distinction is drawn between interceptions carried out for intelligence purposes, on the one hand, and interceptions undertaken in the framework of a criminal investigation, on the other.

Following long and difficult negotiations to overcome this problem, the Presidency tabled a compromise proposal aimed at providing a definition of the authorities involved in an interception as well as a specification of the characteristics of the criminal investigations concerned by this Convention.

In conclusion of the debate which showed that delegations need more time to study the compromise proposal, the Council mandated its competent bodies to pursue work with the aim of reaching an agreement on the draft Convention at the December session.

[Snip] 

Source: http://ue.eu.int/Newsroom/LoadDoc.cfm?MAX=1&DOC=!!!&BID=86&DID=57829&GRP=1785&LANG=1

2184th Council meeting

- JUSTICE AND HOME AFFAIRS -

Brussels, 27/28 May 1999

Presidents:

Ms Herta DÄUBLER-GMELIN , Minister for Justice

Mr Otto SCHILY , Minister for the Interior of the Federal Republic of Germany

CONTENTS

PARTICIPANTS

ITEMS DEBATED

[Snip]

Draft Convention on mutual legal assistance in criminal matters *

PARTICIPANTS

The Governments of the Member States and the European Commission were represented as follows:

[Snip]  

Draft Convention on mutual legal assistance in criminal matters

The Council discussed once again the problem of interception of telecommunications covering traditional, GSM and international satellite-based networks, which is one of the last, but particularly difficult, open questions on this draft Convention.

The purpose of this Convention is to supplement and facilitate the application of the 1959 Council of Europe Convention on mutual assistance in criminal matters, and to adopt new investigation methods in order to provide for a more efficient and faster judicial cooperation in criminal matters.

With regard to interception, it is recalled that the draft Convention only applies to interceptions carried out in the framework of a criminal investigation. Its provisions are aimed in particular at providing the necessary legal basis for appropriate cooperation among Member States regarding interception, and notably the obligation to inform another Member State when carrying out an interception on its territory, the obligation to refrain from intercepting or stop ongoing interception in certain circumstances, as well as the conditions for the use of material already intercepted.

The Council examined three issues in this context, namely the "remote approach" regarding satellite telecommunications, the request by one Member State to establish certain derogations from the general obligation to inform another Member State when carrying out an interception on its territory without needing its assistance, and finally, the use of already intercepted material.

With regard to the "remote approach" concerning the interception of satellite telecommunications, the Council noted that a reservation by one Member State remained on the draft provisions. It is recalled that under the "remote approach", a Member State wanting to intercept a target present on its territory can do so via a national service provider of a satellite telecommunications network whose ground-station is located in another Member State, without needing technical assistance from the latter. The draft provisions establish that the ground station Member State should have no role in this interception as the target is not on its territory and no technical assistance is needed from this Member State. It is recalled that the first satellite network called Iridium opened last year in Italy.

On the second issue concerning derogations from the general obligation to inform another Member State when carrying out an interception on its territory without needing its assistance, the Council noted that the delegation asking for such derogations because of its special national rules on interception, was willing nevertheless to participate fully in the drawing up of provisions in this area. The Council mandated its competent bodies to examine possible solutions by agreeing on a definition of criminal investigation, as the draft Convention is only intended to cover interception carried out in the framework of a criminal investigation.

The Council also mandated its competent bodies to further examine the provisions determining the use of intercepted material in criminal proceedings with a view to reaching a solution acceptable to all delegations.

Joint Position on negotiations in the Council of Europe on a Draft Convention on Cyber Crime

The Council agreed to a Joint Position to be followed by the EU Member States in the negotiations underway within the Council of Europe on a Draft Convention on Cyber Crime.

Recognising the importance of developing effective means of preventing and combating the misuse of new technologies which are increasingly being used, Member States shall support the drawing-up of this Convention and advocate provisions which will facilitate the effective investigation and prosecution of criminal offences related to computer systems and data.

According to the Joint Position, the provisions shall cover, in particular, crimes against confidentiality, integrity and availability of computer data, computer-related offences such as computer fraud and forgery, and content-related offences such as those in the field of child pornography. The Member States will ensure that the appropriate jurisdiction for these crimes is established.

Furthermore Member States are asked to support the establishment of provisions which will facilitate international co-operation including those concerning mutual legal assistance to the widest extent possible; commit Parties to the Convention to preserve stored data upon request of another Party and, finally, request Parties to the Convention to provide for an expedited search of data stored in their own territory regarding investigation of serious criminal offences and, under certain circumstances, for the possibility of a transborder computer search.

This is the first formal Joint Position adopted by the Council after the entry into force of the Treaty of Amsterdam. It will enable the Union to speak with one voice in the ongoing negotiations within the Council of Europe.

Final report on the Telecommunications network of the European Judicial Network

The Council approved the final report on the Telecommunications Network of the European Judicial Network. The report outlines how the telecom system, as envisaged in the Joint Action of 29 June 1998 establishing the European Judicial Network (EJN), could be set up. Practical preparations on this pilot project could begin immediately with a view to the opening of the telecommunications network in the autumn.

The report analyses the solutions offered by different data processing systems together with their possible advantages and disadvantages, cost and the possibility of using already existing telecommunications network.

The purpose of the telecom system is to enable the national contact points (prosecutors and central authorities responsible for judicial cooperation) of the EJN to work in an effective and efficient way, facilitating the exchange of information between themselves and also to enable the Council Secretariat to update the contact points with the latest information on judicial cooperation. The system shall be user-friendly, cost-effective and have the possibility to be easily integrated into the existing computer infrastructure the contact point may already have.

It should be noted that a website (under http://ue.eu.int) has been opened for the EJN and other interested parties. This site contains practical information relating to judicial cooperation, legal instruments etc.